Monday, June 4, 2012

Social contract, majority rule, and chazakah

I have just seen the following justification for the concept of the government in a book on Jewish ethics. I am paraphrasing (since I don't have the book in front of me), but the idea is common enough. It went something like this:

All civilized societies recognize the need for law and order. The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions.

To achieve this goal, the societies form governments which represent the people of the individual societies. Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Let's break it up in parts and see if they make sense:

All civilized societies recognize the need for law and order.

So far, so good. Agreed.

The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions.

And we started off so nicely... The purpose of the law is to protect one's rights, correct. But it does not follow that to have law you need to give up some of your other rights (for instance, a right to pick your own rights protector out of the list).

For instance, you can have a society built like any anarchic societies throughout history: for instance, medieval Ireland or Iceland. You choose your own law-enforcement (or rights-protection) agency, become its voluntary client, and enjoy the protection of your rights. As long as the majority of people agrees in the society that such a state of affairs is good and that peaceful arbitration between private "government" agencies is preferable to violent wars between them, such a society will have law and order without a need to give up one's rights.

Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Note that here there are two arguments for the defense of a government monopoly:

1. We need a monopoly, because otherwise we wouldn't have law and order. (Disproved above.)

2. Because most people choose a particular government, this choice creates a custom. This custom, just like all other customs, is binding on the citizens of the community.

I want to address the latter argument. It is an argument similar to one present in the discussions of some poskim (both Rishoinim and Achroinim) in justificaiton of dina demalchusa dina. Some of the modern commentaries invoke this precise argument, attributing it to the Razal.

Let's try to rephrase the argument giving an example:

In most cities, people enjoy being able to travel to other cities quickly by buses. For that reason they sometimes endure sitting in an uncomfortable seat for a few hours. In a particular community, the majority prefers to travel by Greyhound. The minority prefers Bolt Bus which has more comfortable seats but more expensive tickets.

Because everyone recognizes the need to have buses, the majority may compel the minority to choose Greyhound. First, because you can't have two bus lines operating within the same city (the buses will be unable to negotiate the right of way on the road and run into each other, causing casualties). Second, because by choosing Greyhound, the majority created a custom, and just like any other custom, this one is binding on the whole of the community.

The absurdity of both arguments is self-evident.

But what about the Razal? I think what they are saying (and I base this on the article about dina demalchusa dina in Encyclopedia Talmudis) is the following:

When people interact, they do so within certain customs. Customs are implicit understandings between people that need not be negotiated explicitly. That is why the majority's custom may be binding upon a minority (as long as the minority interacts with the majority in the area that the custom applies to). For instance, if in some locale, upon hiring a worker to paint your house, it is customary to pay him for a half-an-hour lunch break, then the workers have a right to demand the break. If you did not pay them for the break time, you stole from them (or committed a form of stealing, called neshek, "withholding a debt").

Customs may arise spontaneously. Customs may also be set up by the authorities. For instance, in the US people drive on the right side of the road. In the UK -- on the left. It could be that these customs arose spontaneously. It might also be that they were set up top-down, by some authority. It doesn't matter. As long as the majority abide by this custom, it becomes binding on the minorities and individuals (as long as they share the same commonly used road with the majority).

Because the laws of the government practically speaking create such customs (whether government coercion is ideal or moral doesn't matter; the fact is that it creates patterns of human behavior), dina demalchusa dina -- the law of the land is binding.

Note, first of all, that this refers only to the laws which create patterns of behavior. Not arbitrary positive regulations or restriction (such as "it's illegal to sell used mattresses in Massachusetts"). Second, the chazakah (custom) mentioned here is not regarding the acceptance of the government, but regarding the acceptance (or tolerance, or obedience under threat of punishment) of its laws as customs. Hence the popular translation of dina demalchusa dina: "the law of the land is the law". The law of the land: meaning, its people's customs.